Attorney Grievance Com'n of Maryland v. Breschi

Citation667 A.2d 659,340 Md. 590
Decision Date01 September 1994
Docket NumberNo. 38,38
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. George Armando BRESCHI. Misc. (Subtitle BV),
CourtCourt of Appeals of Maryland

Melvin Hirshman, Bar Counsel, and Glenn M. Grossman, Assistant Bar Counsel, for the Attorney Grievance Commission of Maryland, for petitioner.

Domenic R. Iamele, Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

KARWACKI, Judge.

On February 14, 1995, Bar Counsel, at the behest of the Attorney Grievance Commission Review Board pursuant to Maryland Rule BV9, filed in this Court a Petition for Disciplinary Action against George Armando Breschi, Esquire (Respondent). The Petition charges that Respondent violated subsections (a), (b) and (d) of Maryland Rule of Professional Conduct 8.4 1 by knowingly and willfully failing to file federal and state income tax returns for the years 1989 and 1990.

Pursuant to Maryland Rule BV9(b), we referred the matter to Judge J. Norris Byrnes of the Circuit Court for Baltimore County to conduct a hearing and report his findings of fact and conclusions of law on the disciplinary charges against Respondent. Judge Byrnes held the hearing on May 18, 1995; his report was filed with this Court on July 6, 1995.

I

Judge Byrnes found by clear and convincing evidence that Respondent had failed to file his federal 1989 tax return, had been criminally prosecuted in federal court and pled guilty to failure to file, and had been sentenced to probation but no fine:

"The basis for the charge in this case is Respondent's failure to file his Federal 1989 tax return in a timely fashion. He was charged in the United States District Court for the District of Maryland on a criminal information that alleged that he willfully failed to make an income tax return in violation of Title 26, United States Code, Section 7203.

"Respondent pled guilty to that charge. On July 21, 1993, the Honorable William M. Nickerson sentenced him to four years probation and ordered that he pay all of the tax deficiencies that were owed, plus interest and penalties, pursuant to a schedule which was to be worked out between Respondent and the probation department.

"Because Mr. Breschi had a negative net worth of $201,390 and a negative monthly cash flow of minus $985.00, Judge Nickerson found that a fine would be counterproductive, and therefore, did not impose one."

Judge Byrnes also observed that Respondent was not criminally charged with failing to file his federal tax return for the 1990 income year, that the 1990 taxes, interest, and penalties had been paid, and that Respondent was "currently under a payment schedule for the monies due on his 1989 return."

Based on these findings of fact, Judge Byrnes concluded that Respondent had violated Rule 8.4(d). He then went on, however, to make additional findings with regard to Respondent's history, motives, and character, paraphrasing the testimony of the many illustrious members of the Maryland legal community who appeared on Respondent's behalf. After briefly introducing Respondent's background, the judge catalogued in great detail the tribulations of Respondent during the years he failed to file income tax returns. We shall quote at length from Judge Byrnes' Memorandum Opinion and Order, as his additional findings are relevant to our holding in this case:

"Respondent was raised in Baltimore City, attended a local high school, a local college, and the University of Baltimore Law School. He has four children, two of whom are in college and one of whom is a freshman in high school. His oldest child is a graduate of the University of North Carolina. After Respondent graduated from college he worked for several years for the Internal Revenue Service. He was a Revenue Agent and performed audits of tax returns. He was promoted to Appellate Conferee. He then reviewed the work of other Revenue Agents. In 1974, he opened his private practice of law in Towson, Maryland, with Charles Chiapparrelli, Esquire. In 1980 or 1981 he began a partnership with Eric DiNenna, Esquire. It was principally an expense sharing partnership.

"In June of 1988, Respondent took on a RICCA [sic] case. 2 It was a case of first impression involving several defendants and well over 400 exhibits. The case was tried during the months of January and February of 1989; a guilty verdict was returned by the jury and on May 11, 1989, Respondent's client was sentenced and then noted an appeal. There were over 5000 pages of transcript. The Briefs were filed in February of 1990. The case was argued before the Fourth Circuit Court of Appeals in September of 1990, and that Court affirmed the jury verdict.

Certiorari was denied by the United States Supreme Court.

"On February 10, 1991, Mr. Breschi's son Chuck sustained severe injuries when he was stabbed while at school in North Carolina. Respondent rushed to North Carolina where he spent four days with his son. Respondent's wife then took over the nursing duties and Respondent returned to Baltimore to care for his three younger children.

"In the summer of 1991, Respondent's mother was taken to the hospital due to heart problems. In October of 1991, she underwent a heart operation and then suffered a mild heart attack, but recovered.

"On November 13, 1991 Mario Scilipoti, a Revenue Officer, came to call on the law firm of DiNenna and Breschi. The firm had not paid all of its payroll taxes. They had filed all of the returns, and on that date paid $1,000.00 toward the taxes owed. On November 13, 1991 Mr. DiNenna told Mr. Scilipoti that he had just filed his 1989 tax return but was working with another Revenue Agent. Respondent told Mr. Scilipoti that he had not yet filed his 1989 return and that his 1990 return had not been filed but that he had filed for an extension. Mr. Scilipoti recommended that Respondent file his return within 30 days.

"On November 23, 1991, Mr. DiNenna suffered a heart attack while hunting and died. Respondent called Mr. Scilipoti and told him what had happened and promised to get back to him.

"In January of 1992, Respondent met with Revenue Agent Max Magasamann, and paid off the balance of Mr. DiNenna's personal tax liabilities for the tax years 1988 and 1989. Later that month, he met with Mr. Scilipoti and paid him a total of $19,600.00 in back payroll taxes, representing the second and third quarter payments for 1990. It was at that time Respondent began to put together documents for his 1989 and 1990 returns, as well as the documents needed to prepare and file Mr. DiNenna's 1990 return.

"In February of 1992, Respondent was contacted by a U.S. Attorney who told him that he was the subject of an investigation involving the Parlez Cafe. Because of the investigation, the Internal Revenue Service ran a check on Respondent's filings and discovered that he had not filed the 1989 or 1990 returns.

"During the end of March and beginning of April, 1992, Respondent filed the following returns: the 1990 return for the law firm; the 1990 return for Mr. and Mrs. DiNenna; the 1991 return for Mr. and Mrs. DiNenna; the 1989 return for Respondent and his wife; and the 1990 return for Respondent and his wife."

After reviewing the above chronology of events in Respondent's life at the pertinent times, the hearing judge discussed the impact of some of those events on Respondent. He noted Respondent's testimony that, although Respondent was cognizant of and accepted responsibility for the civil penalties associated with failure to file tax returns, he never thought he would be criminally prosecuted:

"In explaining his failure to file returns, Respondent testified that the RICCA [sic] trial, which was being tried in the early months of 1989, was overwhelming. Respondent would spend all day in court, prepare witnesses, and then return to his office in Towson and try to work on other cases. This schedule was confirmed by the testimony of Francis X. Borgerding, an associate in his office. Respondent filed for an extension on April 15, 1989 and again on August 15, 1989; with the initial extension he sent a check for $300.00. He said he knew that this would result in the opening of a file....

"As has been noted, Respondent was a former IRS Agent. He was aware of the criminal penalty associated with failing to file, but he did not think it would happen to him. He recognized that he would have to pay the penalty and interest and did not consider that he was getting away with anything.

"In 1989 and 1990, Mr. Breschi had two mortgages on his home, was paying $16,000 in tuition and over $600.00 per month in car payments. He was frequently behind in some of these payments. He would use a home equity loan to help run his law practice. He did not take any vacation, made no improvements to his home, and worked as much as he could. He does not have a drinking or gambling problem."

Several character witnesses were called, including the widow of Respondent's former partner, his staff, several prominent lawyers, and three judges; all testified that Respondent was of high moral character, trustworthy, honest and capable. The hearing judge quoted the testimony of several witnesses, including two who noted that Respondent had still taken the time and energy to help them during this difficult period of his life.

Judge Byrnes concluded his opinion by finding deep remorse and a lack of intent on the part of Respondent, and recalling the words of one of the character witnesses, who analogized Respondent to the cobbler whose children had no shoes:

"[Bar Counsel] does not contend that Respondent intended to defraud the government out of the money that was owed. Judge Nickerson reached that conclusion on July 21, 1993, when he stated, 'I believe [t]here was no intent on [Mr. Breschi's] part to cheat the government....'

"The Court finds that Respondent is deeply remorseful. He never intended to defraud the government out...

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